Expert Determination is a proven and viable alternative to litigation, arbitration and mediation.
The process is not governed by law, statute or by a body of court rules. It is governed by contract, more specifically by contract between the parties to the dispute. The appointment of an Expert Determiner may arise from the triggering of a ‘dispute resolution clause’ within a contract, for example. Any type of contract! But even if there is no such clause, the parties can still agree to refer their dispute to Expert Determination. The dispute, the procedures to be followed, will then be governed by an underlying agreement.
The procedure is normally relatively simple and informal. The claiming party makes submissions to the Expert Determiner, the defendant party makes a response, and the claimant makes a counter-response. Each party is thus allowed to present its case and offer arguments to support its respective position.
The Expert Determiner considers the submissions and responses of the parties and may then decide to make his own enquiries, ask further questions of the parties and, in some cases, hold a meeting with the parties.
The Expert Determiner then renders his decision and at the direction of the parties, the decision can be with or without reasons.
The Expert Determination process has several advantages:
Fairness and Impartiality
The Expert Determiner will act fairly and impartially and will consider all of the arguments and submissions of the parties.
The process is relatively quick.
The Decision of the Determiner is final and binding.
The process is such that in many instances, the relationship between the parties is preserved. This is mainly because both parties agree that the dispute will be subject to Expert Determination and will be bound by the decision of the Expert Determiner.
Choice of Expert Determiner
The parties can agree to the best qualified Expert Determiner to match the nature of the dispute.
Only the parties are aware of the dispute.
The parties agree on a fee for the Determination and normally, are jointly liable for fees. The process has proven to be far less costly than litigation or arbitration.
Jervis ICI Ltd.